Director of Public Prosecutions v Vitiello
[2023] VCC 1303
•14 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01529
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT CIRO VITIELLO |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2023 and 9 March 2023 | |
DATE OF SENTENCE: | 14 March 2023 | |
CASE MAY BE CITED AS: | DPP v Vitiello | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1303 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated burglary; being a prohibited person in possession of a firearm; trafficking in a drug of dependence in a commercial quantity; trafficking in a drug of dependence; possessing cartridge ammunition without a licence; driving while suspended; committing an indictable offence whilst on bail; possessing a controlled weapon.
Legislation Cited: Crimes Act 1958 (Vic) s 77; Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71AA(1); 71AC(1), 73(1); Firearms Act 1996 (Vic) ss 5, 124(1); Road Safety Act 1986 (Vic) s 30(1); Control of Weapons Act 1990 (Vic) s 6.
Cases Cited:DPP v Meyers [2014] VSCA 314; Berichon v The Queen (2013) 40 VR 490; DPP v Herrmann [2021] VSCA 160; Bugmy v The Queen (2013) 249 CLR 571; DPP (Cth) v Maxwell [2013] VSCA 50.
Sentence: Total effective sentence of 6 years, 4 months and 28 days with a non-parole period of 4 years and 2 months; fine of $400.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | Slink & Keating |
HER HONOUR:
Pleas of guilty
1This sentence concerns two indictments, numbered L11692358.1, ('the April offending') and C1912960.1 ('the September offending'), along with related summary offences.
2Trent Vitiello, you have pleaded guilty, on indictment: L11692358.1 – (the April offending), to:
· One charge of aggravated burglary (Charge 1 - maximum penalty of 25 years' imprisonment);[1]
· One charge of trafficking in a drug of dependence (methylamphetamine at a quantity of approximately 52.5 grams (purity unknown) (Charge 2 – maximum penalty of 15 years' imprisonment);[2] and
· One charge of possession of a drug of dependence (Charge 3 – MDMA at in a quantity of four tablets – the maximum penalty of five years' imprisonment applies).[3]
[1]Crimes Act 1958 (Vic) s 77.
[2]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC(1) (‘Drugs Act’).
[3]Ibid s 73(1).
3On Indictment C1912960.1 (the September offending) you have pleaded guilty to:
· Two charges of being a prohibited person in possession of a firearm (a baretta handgun, Charge 1, and a shotgun – Charge 2) each charge commanding a maximum penalty of 10 years' imprisonment;[4]
· You have also pleaded guilty to one charge of trafficking in a commercial quantity of methamphetamine (Charge 3, at a quantum 332 grams) an offence which carries a maximum penalty of 25 years' imprisonment;[5]
· One charge of trafficking in a commercial quantity of 1,4-Butanediol (Charge 4 at a quantum 3,708.3 grams) an offence which carries a maximum penalty of 25 years' imprisonment;[6]
· One charge of trafficking simpliciter (Charge 5 MDMA 3.1 grams) an offence which carries a maximum penalty of 15 years' imprisonment;[7] and
· One charge of trafficking simpliciter (Charge 6 Buprenorphine 2.8 grams) an offence which carries a maximum penalty of 15 years' imprisonment.[8]
[4]Firearms Act 1996 (Vic) s 5 (‘Firearms Act’).
[5]Drugs Act (n 2) s 71AA(1).
[6] Ibid.
[7]Drugs Act (n 2) s 71AC(1).
[8] Ibid.
4In addition, you have also agreed to have uplifted and pleaded guilty to the following related summary offences:
· One charge of possessing cartridge ammunition without a licence (as amended - Summary Charge 3 - an offence which attracts a maximum penalty of 40 penalty units);[9]
· One charge of driving while suspended between 10 July 2019 and
16 September 2019 - Summary Charge 11 - an offence which carries a maximum penalty of 240 penalty units or two years' imprisonment);[10]· One charge of committing an indictable offence whilst on bail (Summary Charge 12 - an offence which carries a maximum penalty of 30 penalty units or three months' imprisonment);[11]
· One charge of possessing a controlled weapon without excuse (a knife – Summary Charge 17 - an offence which carries a maximum penalty of 24 penalty units or two years' imprisonment).[12]
[9]Firearms Act (n 4) s 124(1).
[10]Road Safety Act 1986 (Vic) s 30(1).
[11]Bail Act 1977 (Vic) s 30B.
[12] Control of Weapons Act 1990 (Vic) s 6.
Maximum Penalties
Circumstances of offending
5On your plea, the prosecution tendered a 'Summary of prosecution opening' dated 21 September 2022, much of which had been prepared for other purposes, making some of it not directly relevant to your case; these parts were identified by prosecution counsel at the hearing. I have taken all of the opening into account; it is attached to and forms part of these reasons. I will quote only some parts of it here, being the parts directly relevant to the matters for which I must sentence you.
April offending (aggravated burglary)
6Late in the evening of 29 April 2019, an associate of yours, Mr Holt, contacted a Ms Simmons and asked that she drive him to collect things that belonged to him. That exercise required them driving to a number of locations.
7Between 12:36 am and 8:00 am on 30 April 2019, 100 messages were exchanged between Mr Holt and his former partner, Ms Dangen.
8The messages between them were concerned with the return of a bag that belonged to Mr Holt, the retrieval of keys to a car, and the fact that another person, Shannon Taylor, was staying overnight at Ms Dangen's home.
9At 7:26 am, Mr Holt spoke to Shannon Taylor by phone and a further call between the two happened at 7:41 am, this time for seven minutes. The upshot was an agreement that Mr Holt would collect an overnight bag from Ms Dangen's house. This is the point at which your involvement in these events begins.
10Mr Holt contacted you via Messenger asking for a lift to Ms Dangen's house - you declined but arranged an Uber ride for him on your account and agreed to meet him nearby the address so you could drive him after he visited.
11Mr Holt's Uber driver delivered him close to the address in Hampton Park. You met him in your car. Mr Holt got into your backseat of the car you were driving; a woman, 'Demi', was also in the car with you. You drove to the address, and you watched the house. You smoked ice together.
12Mr Holt got out of the car and knocked on the front door - he then tried the side door of the house, which was locked, and returned to the car to send a message to Shannon Taylor: 'I am here', he wrote. 'Come through the back' was Mr Taylor's reply.
13Mr Holt entered the property and was confronted by Ms Dangen and Mr Taylor - he took with him an extendable baton. Once he was inside, a disagreement evolved which led to Mr Holt using the extendable baton to strike Mr Taylor, which actually landed on Ms Dangen. Mr Holt dropped the baton and ran out of the house. As he was leaving, though, he met you on the way in - you saying words to the effect 'fuck them' or 'fuck this' – whereupon Mr Holt re-entered, followed by you.
14I note that it is at this point that your liability first arises – you are not said to be complicit in the first entry.
15Once inside you heard two gun shots go off. The first missed everybody and lodged in a wall. The second travelled through Mr Taylor's leg from the top of his knee.
16You called Ms Dangen and Mr Taylor 'fucking dogs' and encouraged Mr Holt to take the car keys to the ute parked out the front. He declined to do so. You and Mr Holt then left the house.
17After leaving, you and Mr Holt planned that Mr Holt would collect some possessions before leaving for Mildura.
18At approximately 10:00 am that morning you were observed hiding a satchel in the hedge of an address in Cranbourne East. A resident called police and they soon found the satchel which had in it:
· 1 x silver torch;
· 1 x blue cloth;
· 1 x Ziplock bag containing four smaller plastic bags, containing a total of 26.25 grams of methylamphetamine;
· 1 x Ziplock plastic bag containing four ecstasy tablets (Charge 3);
· 1 x Ziplock bag containing five smaller plastic Ziplock bags with a total of 21 grams of methylamphetamine;
· 1 x Ziplock plastic bag containing three smaller plastic Ziplock bags with a total of 52.5 grams of methylamphetamine (Charge 2); and
· $19,000 cash in $50 denominations.
19While considering this sentence, I asked for clarification of the quantum the subject of Charge 2, trafficking methylamphetamine. I was advised that the total amount of methylamphetamine the subject of Charge 2 was 52.5 grams – in three amounts – untested for purity.
20You were charged with these matters on 2 July 2019 and exercised your right to silence in a police interview. You were then granted bail.
September offending (drugs)
21Sometime before your second arrest, on 16 September 2019, you were under police surveillance.
22On that date, police executed a warrant on the black car you had observed to be driving.
23The following items were seized:
· 1 x large Ziplock bag with a further Ziplock bag containing methylamphetamine (Charge 3);
· 1 x Ziplock bag with other Ziplock bags, containing methylamphetamine (Charge 3);
· 1 x small transparent bottle containing 1,4-butanediol (Charge 4);
· 1 x small Snap Lock bag with further bags containing ecstasy powder (Charge 5);
· 1 x black coloured 'Herschel' sling bag containing a silver handgun, depicting 'P.Beretta – Cal.9' 3 5, which at the time of seizure was loaded with ammunition (Charge 1 and Summary Charge 3);
· 7 x spring water bottles, 600 ml containing 1,4-butanediol (Charge 4);
· 1 x single barrel 12-gauge sawn off shotgun, which at the time of the seizure was loaded with ammunition (Charge 2);
· Another Ziplock containing methylamphetamine (Charge 3);
· A notebook containing 'monies pending'; and
· 1 x sheath containing a large knife, with a black handle and red cord (Summary Charge 17).
24The address where you were resident in Rosebud, heavily fortified, as it turned out, was also searched pursuant to a warrant. They found buprenorphine (2.8 grams total - Charge 6 – possessing a drug of dependence) and a quantity of assorted ammunition (Summary Charge 3 – possess cartridge ammunition).
25The total quantity of methylamphetamine seized (Charge 3) was 332.2 grams (noting that a commercial quantity is 250 grams and above).
26The total quantity of MDMA (Charge 5) was 3.1 grams (a trafficable quantity is 3.0 grams).
27The total quantity of 1,4 Butanediol (Charge 4) was 3708.3 grams (and a commercial quantity is 2 kilograms and above).
28The buprenorphine, the subject of Charge 6, traffic simpliciter, was 2.8 grams (and a trafficable quantity 2 grams).
29The handgun (Charge 1) and the shotgun (Charge 2) were found to have your DNA on them. The handgun had your DNA (or DNA 100 billion times more likely if you were a contributor) on the slide and the hammer or bolt of the gun. The shotgun had DNA evidence 8,000 times more likely if you were a contributor – this was found on the trigger and trigger guard of the weapon.
30The handgun had its serial number erased - and was capable of firing bullets. The shot gun lacked a 'firing pin' and therefore could not be used in that state it was found in.
Nature and gravity of offending
31I am obliged to assess the nature and gravity of your offending.
The April offending
32I am careful to assess your offending in relation to the first indictment in the following way. While you participated in the intrusion into the home of Ms Dangen and Mr Taylor, you did so spontaneously, and after Mr Holt's original entry, and I accept that your role was lower than that of Mr Holt. Despite what transpired inside, you do not fall to be sentenced as having any weapon with you upon entry, the event was short-lived, you did not attempt to disguise yourself, nor did you cause any injury to those present and you will not be sentenced on that basis. That said, entry of a home with people inside in these circumstances is always a very grave matter, and I note your prior conviction for aggravated burglary.
33To be clear, regarding your culpability for the aggravated burglary offence, the prosecution put its case on the basis of your complicity in the acts of Mr Holt – he entered the house with the intent to commit an assault on the person or people inside.
34I have considered your offending in the light of the indicia in the case of DPP v Meyers.[13] You entered shortly after 9:30 am; that entry was not a forced one. Your co-accused had carried a weapon earlier, but you did not. On the facts before me, and on which I will sentence, Mr Holt bore some grievance against those inside – one of whom was his former domestic partner - I do not attribute that grievance or relationship to you. I will deal later with the parity issue in this case.
[13][2014] VSCA 314 [47].
35Given the resolution of this case, I am obliged to set aside the otherwise significant fact of the discharge of a shotgun inside the house and its injury of one of those present.
36To be clear, although the facts refer to the discharge of a firearm and the injury sustained by Shannon Taylor, you have not been charged with that act and do not fall to be sentenced for it; this detail is included in my summary for completeness.
September offending: Firearms offences
37I turn now to the firearms offences charged in September 2019.
38Both guns were loaded at the time of their seizure; though one was incapable of being fired in its state. They were found in a car where drugs giving rise to Charges 3 and 4, trafficking in a commercial quantity, were kept. Your counsel submitted you possessed the firearms for self-protection in the context of your previous trauma. I reject that as a complete explanation; while you may have felt comforted by the presence of these weapons, I cannot ignore the fact they were seized in the context of commercial quantity trafficking, which elevates your culpability into the 'second category' of offending - being for the creation of an enforcement system in the lawless world of the drug trade. So, I find your possession of them was for this mixed purpose, and this elevates the seriousness of your offending in this regard, taking into account what the court said in Berichon:
'The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order.23 Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.’[14]
[14]Berichon v The Queen (2013) 40 VR 490 [26] per Redlich JA.
39I am conscious, however, of the need not to doubly punish you as between the drugs and firearms charges – and I will assess the seriousness of the drugs charges without reference to the guns.
Drug offending – April and September
40For each of the drug offences, you were charged by reference to a single date. The more serious drugs charges arise in the September offending and your counsel sensibly conceded that the commercial quantity charges are indeed objectively very serious.
41Your counsel submitted that the quantity of methylamphetamine relevant to Charge 3 was approximately 1.3 times the threshold for a commercial quantity; a large commercial quantity would be three times that located in your case. In relation to the 1,4-butanediol, this was in a quantity about 1.8 times the threshold for a commercial quantity, but your counsel submitted this should be seen as lower in the range in the commercial quantity category, given that a large commercial quantity would be 10 times the quantity located, and these analyses I accept.
42The charges in relation to MDMA and buprenorphine (of possession, Charge 3 in the April offending) can be located at the lowest level of such offences. They were just over the threshold for the presumption of trafficking to arise. There is little information about the particularity of your role in relation to the drugs – I will sentence you on the basis that on 16 September 2019 you were transporting them, and this was your role in the trafficking – no more and no less. I do not forget the discovery of the buprenorphine in the house.
43Drug sentences need to reflect the enduring harm that flows from the misuse of illicit substances, often by people who already carry more than their share of life's burdens. Placing yourself in the chain of trafficking that exploits and amplifies the suffering of others calls for significant punishment and deterrence, and I will return to those matters when considering the particular purposes of this sentence.
Prior Criminal History
44You have criminal history in both Victoria and Queensland. In Queensland in 2013, you received a sentence of imprisonment for dishonesty and driving offences, and your Victorian criminal history commences in the Frankston Magistrates' Court in 2009 with the charge of recklessly causing injury. You have been dealt with for offences against the person and, significantly, for an aggravated burglary in 2014. Also, and relevant to this sentence, you have been sentenced for possession of cartridge ammunition without a license or permit, and in the same year for being a prohibited person in possession of a firearm. While you have been convicted for drug offences, these have been by way of possession only; the trafficking offences with which I must deal are your first.
45This is the third time you have been sentenced in the County Court. I read the sentencing remarks of Her Honour Judge Thornton dated 3 October 2012. Her Honour sentenced you for affray and recklessly causing injury.
46I have read the Judge Hannan sentence delivered on 10 December 2014. In that sentence, her Honour assessed your prospects of rehabilitation as 'guarded', given your history, though her Honour noted that the support of your family still lent you some positive signs in this regard.
47But your history must now be described as protracted.
Victim Impact
48I am obliged to take into account the impact of your offending on your victims. No victim impact statements were provided in this case, but I am able to conclude these events were terrifying for Ms Dangen and Mr Taylor, as their privacy and safety at home was so destroyed by what you, with your co-accused, did.
Personal Circumstances
49You are now 32 years old; you were 28 at the time of the commission these offences.
50You are the eldest of three biological siblings and you have an older half sibling. Your parents separated when you approximately three years old; you witnessed and were a victim of domestic violence while still a child.
51You did not find school engaging and you found it difficult to pay attention. You became disruptive. You left school in Year 9 but later completed Year 10 at a TAFE. From age 12, you have had a range of casual employment: working at Bakers Delight, at a marina, and as a painter. At one stage you started a pre-apprenticeship course in plumbing, but you did not complete this. You were a member of the Army Reserve and accepted into the Army but was discharged when you were charged with assault at age 18. You started a refrigeration apprenticeship, but this was discontinued after a workplace injury.
52You started heavy alcohol use from the age of 13, drug use at an experimental level from the age 15, and from age 18 your use of methamphetamine became a significant problem, particularly after the injury that ended your refrigeration apprenticeship.
53You have a daughter, Ava, aged 12, born when you were 19. You have maintained a relationship with her when you have not been in custody.
54You have previously been the victim of both serious assault and the victim of sexual abuse in custody.
Matters in mitigation
Pleas of guilty
55You pleaded guilty; witnesses were spared the ordeal of coming to court and the community were spared the costs, human and financial, of conducting a trial of these matters. This is a matter real importance. Your plea also indicates your acceptance of responsibility, which is important too and mitigates your sentence.
56Moreover, although much of our lives have returned to something like a pre-COVID normality and waiting lists in the County Court continue to contract, there is still a significant backlog of cases caused by the measures to address the pandemic. Your plea still draws an additional and significant benefit to you in that context.
57I also accept that your pleas contain within them an aspect of remorse.
Mental health
58On your plea, your counsel advanced a range of information about your mental health. A report by Ms Carla Ferrari dated 13 October 2018, a report dated 7 October 2022 by psychologist Ian McKinnon, and a neuropsychological report dated 5 February 2023 authored by Dr Sami Yamin were tendered.
59The following features of your mental health were distilled by your counsel's submissions as:
· Complex post-traumatic stress disorder (PTSD);
· Substance abuse disorder;
· Major depressive disorder;
· Possible ADHD; and
· Intellectual functioning in the extremely low range (likely to be neurodevelopmental in nature and present at the time of the offending).
60Mr McKinnon opined that, at the time of your offending, you were suffering from PTSD and substance abuse disorder. He also raised concerns about your mental health if you were imprisoned for a further significant period. In a legal context, it is clear that your mental health difficulties are compounded by and complicated, for legal purposes, by your drug use. Your barrister took me to a passage at page 11 of Mr McKinnon's report in which he states:
'In my opinion, Mr Vitiello's CPTSD and his associated SAD made significant contributions to his offending by degrading his ability to reason and make sound judgement, raising his propensity for reckless and angry responses, lowering his powers of consequential thinking, reducing his ability to empathize, diminishing his awareness of his personal and community responsibilities and fuelling both destructive and self-destructive impulses.
During the period of the offences, Mr Vitiello was (apparently) habitually using methyl amphetamine and GHB.'
61I accept that you had long-standing mental health issues, in combination with the limitations on your intellectual functioning that arose from your childhood and from later traumatic events as an adult; and to the degree I am able to, which is rather limited, I take that into account in a general way in mitigation of your sentence. However, a more specific legal submission is confounded by evidence of your persistent drug habits, including your drug use at or around the time of the commission of your offences, which serves to obscure any more specific factors in moderation of your sentence.
Childhood deprivation
62In your early childhood you were exposed to your father's violence and to a world that made criminal behaviour seem normal, even glamorous. To the extent that offending conduct can be seen to reflect the operation of factors which were beyond your control, the harshness of the moral judgment in this sentenced is to be moderated.[15]
[15]DPP v Herrmann [2021] VSCA 160 [14] .
63You grew up in a household marred by alcohol and violence, and I accept that a background of this kind has troubled your growth and development in that you have had fewer opportunities to mature and learn from experience. I must also bear in mind though the other side to the Bugmy principle,[16] which suggests some long-term inability to govern your responses to difficulty increases the need for specific deterrence and for community protection.
[16] Bugmy v The Queen (2013) 249 CLR 571.
64I mitigate your sentence to some degree on account of the lifelong damage you have incurred from exposure to violence in your formative years.
Delay
65You have served almost three and a half years, a very long time, by way of presentence detention, all time which has been served during the COVID-19 pandemic and the privations and uncertainty, more extreme for those incarcerated, that defined that time. I take the additional custodial burden caused by the COVID- 19 pandemic into account on your sentence.
Custodial conditions
66You have been housed in a protection unit after your assault in custody and, on your request, returned to the mainstream units. I accept that in the prison context, such a change might give rise to speculation and an extended sense of danger in the mainstream population, and I take that into account.
67You find yourself in good physical health in custody, though still very troubled by the effects of violent events perpetrated against you in the past, increasing the burden of imprisonment on you, and I take that into account.
68You have been unable to attend the funerals of loved ones (your partner and your grandmother) during your time in custody. You will not allow your daughter to visit you in custody as you don't want her exposed to that environment.
69Through your counsel, you raised a problem relating to the calculation of 'emergency management days' in your case – I am obliged to set aside any consideration of executive action and I do so.
Rehabilitation: effort, prospects
70On your case, I received a bundle of urine screens between 2020 and 2021 all showing negative results. There are also certificates from custody showing participation and completion of education about drugs, alcohol, parenting, and personal development. There are letters from Forensicare demonstrating you have, where possible, sought and engaged with psychological treatment from their mobile service.
71
I was impressed by a letter from your 'Alcoholics Anonymous' associate
Mr Swinnerton, who writes of your participation in the 12-step program and your attendance at weekly meetings since October 2019. In a custodial environment at least, you can commit to regular assistance and accept help.
72I still find your prospects for rehabilitation, however, to be guarded and untested.
Sentencing principles
73The role for general deterrence in relation to all your offending, but particularly your drug offending and the aggravated burglary is very, very significant. In relation to the charge relating to the 1,4-butanediol, I note the court's reasoning in Maxwell,[17] although that case was in relation to the drugs of GHB and GBL so called, with which I understand 1,4-butanediol has a relationship. Further, given your criminal history, I find there is also a need for specific deterrence and the protection of the community. There must be just punishment and denunciation delivered by this sentence. I have already referred to your prior history in relation to the need for specific deterrence: Mr Vitiello, the basic proposition is this, sentences will keep going up until you stop.
[17] DPP (Cth) v Maxwell [2013] VSCA 50, regarding GBL and GHB, and the distinct ‘profit margin’ feature relating to these drugs, and by implication 1,4 Butanediol.
Co-accused and Parity
74Mr Holt pleaded guilty to the April offending (on a different basis, being 'Home Invasion') and has been sentenced. He also pleaded guilty to two unrelated summary charges of contravention of a family violence intervention order.
75On 4 June 2021, Mr Holt was sentenced by another judge of this court to time served (394 days) and an 18 month CCO. Because parity issues were not dealt with at the time of the hearing, I invited submissions from the parties prior to fixing sentence in this case. On reading Mr Holt's sentence, the parity issues multiplied and became more complex, as the result of the cases resolving on wildly different - or contradictory - factual bases.
76To be clear, I understand such things must happen from time to time in this imperfect world. However, I am still obliged to sentence in such a way that avoids a 'justifiable sense of grievance' emerging out of these cases.
77The parties did not differ in the approach to Mr Holt's sentence, and the following points were in substance agreed:
(a) Mr Holt pleaded to the 'Home Invasion' offence which is arguably more serious as indicated by the mandatory scheme attached to it, though it carries the same maximum penalty;
(b) I must sentence and make findings in relation to parity on role on the basis of the facts before me (and by implication, not the facts as set out in Mr Holt's sentence);
(c) This requires me to set aside the factual basis of Mr Holt's sentence in all the circumstances;
(d) Mr Holt's circumstances of mitigation included the very significant matter of his making a statement and giving an undertaking to give evidence;
(e) Mr Holt had no prior convictions for aggravated burglary, and a more limited history, it would seem, more generally.
78I have had regard, more generally, to the matters in mitigation pleaded on Mr Holt's behalf and recited in his Honour Judge Doyle's sentence. This is an artificial process to make any kind of reasonable comparison of the two sentences given how I must find on the facts on this sentence.
79I have found your culpability for the entry to the premises to be lower than Mr Holt's. However, weighing against you in the parity calculus is your prior conviction, and weighing very significantly in Mr Holt's favour is his decision to give evidence and an undertaking to give evidence at your trial.
80The upshot of all that is that there will be some disparity in the two sentences and your sentence will be the higher. I say this while noting that, because of the different resolutions, the act of comparison which underpins any parity analysis is, in this case, fundamentally impossible.
Statutory sentencing structures
81Trafficking in not less than a commercial quantity is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic). No exception was argued and your counsel sensibly conceded that a term of imprisonment with a head sentence and non-parole period is the only appropriate disposition open to me in this case.
Totality
82I have had regard to the principle of totality in arriving at these sentences; I will sentence you while having regard to the offending as a whole. I will order part of the sentence on the April offending to be served concurrently with the sentence on the September offending as one aspect of that consideration.
Disposition
Indictment L11692358.1 - 'April Offending'
·On Charge 1, aggravated burglary, you are convicted and sentenced to two years' and three months' imprisonment;
·On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to eight months' imprisonment;
·On Charge 3, possession of a drug of dependence, you are convicted and sentenced to one month imprisonment.
83On the April offending, Charge 1 will be the base sentence.
84I direct that four months of the sentence on Charge 2 will be served cumulatively on the sentence on Charge 1, making a total effective sentence on the 'April Offending' indictment of two years' and seven months' imprisonment.
Indictment C1912960.1 - 'September Offending'
85On Charge 1, prohibited person in possession of a firearm, you are convicted and sentenced to 12 months' imprisonment.
86On Charge 2, prohibited person in possession of a firearm, you are convicted and sentenced to 12 months' imprisonment.
87On Charge 3, trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to two years' and four months' imprisonment.
88On Charge 4, trafficking in a commercial quantity of 1,4-butanediol, you are convicted and sentenced to two years' imprisonment.
89On Charge 5, traffic (simpliciter) MDMA, you are convicted and sentenced to three months' imprisonment.
90On Charge 6, traffic (simpliciter) buprenorphine, you are convicted and sentenced to three months' imprisonment.
On the related summary offences
91Summary Charge 3, possessing ammunition rounds without a license (as amended), and Summary Charge 17, which is the prohibited weapon charge, you are convicted and sentenced to an aggregate fine of $400. Mr Vitiello, I am obliged to explain to you about an aggregate sentence, it just means I bundle two charges together and give you one sentence on them together to make things simpler.
92On Summary Charge 11, driving whilst unlicensed between 10 July 2019 and
16 September 2019, you are convicted and sentenced to one month imprisonment.93On Summary Charge 12, committing an indictable offence while on bail, you are convicted and sentenced to one month imprisonment.
Orders for cumulation on indictment 2
94The sentence on Charge 3 will be the base sentence. I direct that seven months of the sentence on Charge 1, six months of the sentence on Charge 2, 11 months of the sentence on Charge 4, and 14 days on each of the sentences on Charges 5 and 6 be served cumulatively upon each other and upon the sentence of Charge 3, resulting in a total effective sentence on the September offending of four years, four months and 28 days, and an aggregate fine of $400.
95To be clear, I do not intend to cumulate any of the sentences on the related summary offences.
96As between the two indictments, I direct that the sentence of four years, four months and 28 days on the September offending be treated as the base sentence. I direct that two years of the sentence on April offending be served cumulatively upon the sentence imposed on Indictment C1912960.1. This makes a total of six years, four months and 28 days in respect of all offences for which you are presently before the court.
Non-parole period
97I direct that you serve a minimum period of four years and two months before becoming eligible for parole.
Section 6AAA
98Pursuant to s 6AAA of the Sentence Act, I declare that had you not pleaded guilty but been found guilty by a court, I would have imposed a sentence of eight years and 11 months with a minimum non-parole period of six years.
Pre-sentence detention
99I make the declaration pursuant to s 18 of the Sentencing Act that you have served 1276 days by way of pre-sentence detention to be deducted as time already served pursuant to this sentence..
Ancillary Orders
100I make the orders for forfeiture and disposal as sought, noting that they are now unopposed by the removal of the Subaru car from the schedule.
101Counsel, are my orders clear?
102MR PICKERING: Yes, Your Honour, and I think we all agree on the maths.
103HER HONOUR: I am immensely pleased to hear so. Are there any other orders that I have not mentioned?
104MR PICKERING: No, Your Honour.
105HER HONOUR: Anything else sought, Mr Pickering? Ms Anderson?
106MS ANDERSON: No orders, Your Honour. But may I just speak to my learned friend about one matter just briefly before Your Honour rises?
107HER HONOUR: Yes, of course. Yes.
108MS ANDERSON: Your Honour, there was a matter that was raised in the sentencing remarks which I think is not correct. It did not seem to have any impact on the sentence, but I thought I should just raise it for completeness.
109HER HONOUR: Yes.
110MS ANDERSON: Your Honour commented that - I am just getting to the spot in my notes - that the April offending, you said that Mr Vitiello was charged on 2 July, exercised his right to silence, was granted bail, and that he then offended with the September offending whilst on bail. That is not correct is my understanding. The April offending occurred, was uncharged. The September offending occurred, he was charged and remanded, and then he was charged for the April offending whilst he was in custody for the September offending. And he was charged with the April offending in July 2020 even though that was from April 2019. So, he was on bail at the time for something completely separate.
111HER HONOUR: I understand.
112MS ANDERSON: But it was not actually April offending for the September offending. There did not seem to be anything in the sentence that reflected on that, but just in terms of - - -
113HER HONOUR: There was the charge, the related summary charge, yes, in relation to that, but you say that was from a previous event?
114MS ANDERSON: It is in terms of the commit indictable offence on bail, yes.
115HER HONOUR: Yes.
116MS ANDERSON: But Your Honour indicated that that charge did not have any cumulation as a result of it anyway. So, I do not think there was necessarily any implication on the actual sentence.
117HER HONOUR: You just wanted to correct the record, and I appreciate that.
118MS ANDERSON: That's right.
119HER HONOUR: I appreciate that.
120MS ANDERSON: Otherwise - - -
121HER HONOUR: Anything arising out of that, Mr Pickering?
122MR PICKERING: No, Your Honour, I agree with that.
123HER HONOUR: Good. Ms Anderson, what I will do is leave you with Mr Vitiello for a debrief if we had time on the link, which I think we might.
124MS ANDERSON: Thank you, Your Honour.
125HER HONOUR: Thank you.
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